Gujarat High Court
Arvindbhai Girdharlal Kapadia vs State Of Gujarat & 3 on 11 February, 2016
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/SCA/8551/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8551 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the
fair copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
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ARVINDBHAI GIRDHARLAL KAPADIA....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR JAYRAJ CHAUHAN, ADVOCATE WITH MR MUKUND M DESAI,
ADVOCATE for the Petitioner(s) No. 1
MS MANISHA LAVKUMAR, GP WITH MR RUTVIJ OZA, AGP for the
Respondent(s) No. 1 - 4
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 11/02/2016
ORAL JUDGMENT
1. Rule. Ms. Manisha Lavkumar, Government Pleader, waives service of notice of Rule for the respondents.
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2. By way of this petition, which is filed under Article 226 of the Constitution of India, petitioner has prayed for the following reliefs:
"(a) To admit and allow this petition.
(b) To quash and set aside the respondent's action in not considering the case by passing appropriate orders and declare that the appointment as Principal with effect from 05.07.1991 his fresh recruitment hence is entitled to pension as per the provisions in G.R. and further be pleased to direct the respondent to grant pension forthwith by considering the service rendered by issuing writ in the nature of mandamus or any other appropriate writ, order or direction.
(c) Your Lordships may be pleased to direct the respondent authorities to give benefits of GPF scheme by transferring account of applicant to GPF and further to give benefits of pension scheme under Resolution dated 15.10.1984 within 3 months from the date of order and further be pleased to direct the respondent authorities to start monthly pension immediately to serve the purpose of justice.
(d) To issue a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondent to pay all pensionary benefits to the petitioner with 18% interest p.a. With effect from the date he was retired.
(e) Pending admission, hearing and final disposal of this petition, the respondents be directed to fix ad-hoc pension of the petitioner and pay him regularly till disposal of this petition.Page 2 of 19
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(f) Pending admission, hearing and final disposal of this petition, the respondents be directed to pay all the retiral benefits/dues admissible as per law to the petitioner along with interest at the rate of 18% p.a."
3. Heard learned advocate Mr. Jayraj Chauhan for learned advocate Mr. Mukund M. Desai for the petitioner and learned Government Pleader Ms. Manisha Lavkumar for the respondents.
4. The facts of the present case in nutshell are as under:
4.1. It is the case of the petitioner that the husband of the petitioner had initially joined the service as part time lecturer on 15.06.1968.
He worked in Sahjanand College as the lecturer. Gujarat University has thereafter given permission to the said college for starting noon college from 05.06.1991. Because of the said reason the post of Principal fell vacant and accordingly the advertisement was given for the said post. Husband of the petitioner applied for the said post. After following the necessary procedure for selection, the husband of the petitioner was selected for the post of Principal in noon college. The husband of the petitioner has therefore tendered his resignation on 05.07.1991. Thus, he has resigned on 05.07.1991 from Sahjanand Arts and Commerce College morning and joined the services as Principal in Sahjanand Commerce College noon run and managed by the same Page 3 of 19 HC-NIC Page 3 of 19 Created On Sat Feb 27 23:47:10 IST 2016 C/SCA/8551/2015 JUDGMENT trust on 05.07.1991 itself. In the said college, he has worked as the Principal for five years. Thereafter, he had given the resignation and joined as Principal at N.C.Bodiwala Commerce College w.e.f. 12.09.1996. It is further the case of the petitioner that her husband had tendered the resignation before the Managing Trustees of Sahjanand Arts and Commerce College with a view to join services as Principal of N.C.Bodiwala Commerce College. Appointment of the husband of the petitioner as Principal in N.C.Bodiwala Commerce College was approved by the Gujarat University. At the same time the resignation tendered by her husband was also approved by the trustees of of Sahjanand Commerce College. When he joined N.C.Bodiwala Commerce College, entire amount of P.F. has been transferred to the said college. Once again the husband of the petitioner tendered his resignation before the management of N.C.Bodiwala Commerce College, which was accepted and he was permitted to resign from the services. It is the case of the petitioner that during the said period her husband has made various requests to the respondent authorities after the retirement for granting him pensionary benefits. However, such request was not considered and therefore husband of the petitioner along with other similarly situated persons preferred Special Civil Application No.8572 of 2007. The said petition was disposed of with certain directions. Husband of the petitioner expired on Page 4 of 19 HC-NIC Page 4 of 19 Created On Sat Feb 27 23:47:10 IST 2016 C/SCA/8551/2015 JUDGMENT 21.01.2009.
4.2. It is the case of the petitioner that pension schemes for teaching staff in the non-Government affiliated colleges and the Universities was introduced vide Government Resolution dated 15.10.1984. Thereafter also one circular dated 21.02.1985 was issued by the Government and as per the policy of the Government, the husband of the petitioner is entitled to get the pensionary benefits. In spite of that no such benefit is granted and therefore present petition is filed.
5. Learned advocate Mr. Chauhan appearing for the petitioner mainly contended that Government Resolution dated 15.10.1984 provides for the pension scheme for teaching staff in non- Government affiliated colleges and Universities. Clause Nos. 4,5 and 6 of the said G.R. provide as under:
"(4). The Principal or the teaching staff recruited on or after 01.04.1982 shall automatically be governed by the Scheme and the staff will not be allowed to opt for Contributory Provident Scheme.
(5) The Principal or the teaching staff, who have completed five years of service tenure will be treated as holding permanent posts for the purpose of this Scheme.
(6) In computing the length of qualifying service for pension under the Scheme all previous services, whether temporary, Page 5 of 19 HC-NIC Page 5 of 19 Created On Sat Feb 27 23:47:10 IST 2016 C/SCA/8551/2015 JUDGMENT officiating or permanent, either in one or more than one non-Government aided colleges, university Department, Higher Secondary Schools, which are being paid grant-in-aid from the Government, shall be taken into account. The period of break in service will not be considered as qualifying service i.e. actual service rendered will be considered as qualifying service."
6. After referring the aforesaid clauses contained in G.R. dated 15.10.1984, learned advocate Mr. Chauhan submitted that the husband of the petitioner has put in more than 20 years of service and his appointment date is after 01.04.1982 and therefore he is entitled to get the benefit of the scheme and the husband of the petitioner was not required to exercise the option for the same. It is further contended that service rendered by the husband of the petitioner from the very beginning is required to be counted till his retirement. It is pointed out that in case of Mr. Korat of Bhavnagar University, Dr. Prajapati from North Gujarat University, Dr. Ranjana Harish from Gujarat University and Dr. Arvind Bhandari from Gujarat University whose cases are identical since their second appointment was after 01.04.1982 and though they have not opted for pension even then pensionary benefits were granted to them pursuant to G.R. dated 15.10.1984 issued by the respondent authorities. However, in case of the husband of the petitioner such benefit has been denied and Page 6 of 19 HC-NIC Page 6 of 19 Created On Sat Feb 27 23:47:10 IST 2016 C/SCA/8551/2015 JUDGMENT thereby the respondent authorities have discriminated the husband of petitioner and violated Article 14 of the Constitution of India.
7. At this stage, learned advocate Mr. Chauhan pointed out that in similar type of cases wherein the concerned petitioners preferred the petitions before this Court for getting the pensionary benefit pursuant to G.R. dated 15.10.1984 this Court has given direction to the respondent authorities to grant such benefit to the concerned petitioners. The State preferred Letters Patent Appeal against the decision rendered by the learned Single Judge. The Hon'ble Division Bench dismissed the said LPA against which in some of the cases the State preferred Special Leave Petitions before the Hon'ble Supreme Court and the said SLPs were dismissed by the Hon'ble Supreme Court. Thus, the State Government has accepted the decision rendered by this Court in similar type of matters. He, therefore, requested that this petition be allowed and pensionary benefit be granted in favour of the husband of the petitioner and then in favour of the petitioner after the death of her husband.
8. On the other hand, learned Government Pleader Ms. Manisha Lavkumar has tried to distinguish the facts of the present case from the case decided by this Court. However, she is not in a position Page 7 of 19 HC-NIC Page 7 of 19 Created On Sat Feb 27 23:47:10 IST 2016 C/SCA/8551/2015 JUDGMENT to dispute that this Court has given direction to the respondent authorities to grant pensionary benefits to the similarly situated persons and in past also the State Government has given similar benefit to the similarly situated persons.
9. I have considered the submissions canvassed on behalf of the learned advocates appearing for the parties. I have also gone through the material produced on record and the various orders passed by this Court in case of similarly situated persons. From the record, it has emerged that the husband of the petitioner has joined the service on 15.06.1968 as part time lecturer and thereafter he has worked as a lecturer in Sahjanand College. From 05.07.1991, husband of the petitioner was appointed as Principal in Sahjanand Commerce College noon and thereafter he has worked in different colleges as Principal and ultimately he tendered his resignation on 04.02.2008, which was accepted by the management of N.C.Bodiwala Commerce College. By way of G.R. dated 15.10.1984, the State Government has framed pension scheme for teaching staff in non- Government affiliated colleges and universities. As per the said scheme, the Principal or the teaching staff recruited on or after 01.04.1982 shall automatically be governed by the scheme and the staff will not be allowed to opt for Contributory Provident Fund Scheme. Thus, it is clear from the said scheme that when the husband Page 8 of 19 HC-NIC Page 8 of 19 Created On Sat Feb 27 23:47:10 IST 2016 C/SCA/8551/2015 JUDGMENT of the petitioner was appointed as Principal after 01.04.1982 i.e. on 5.7.1991 he was not required to exercise the option and he was governed by the scheme automatically. Even clause No.6 of the said G.R. is providing that while computing the length of qualifying service for pension under the said scheme, all previous services, whether temporary, officiating or permanent, either in one or more than one non- Government aided colleges, university, department, higher secondary schools, which are being paid grant-in-aid from the Government, shall be taken into account. Thus, the service rendered by the husband of the petitioner prior to 1991 is also required to be calculated for considering his qualifying service.
10. In similar type of fact situation, the Hon'ble Division Bench of this Court while dismissing the LPA being L.P.A. No. 981 of 2015 preferred by the State Government passed an order on 02.07.2015, wherein the Hon'ble Division Bench has observed in para 6 as under:
"[6.0] Heard learned advocates appearing for respective parties at length.
Having heard learned advocates appearing for respective parties, the following three questions are posed for consideration of this Court.
1. Whether an employee like the original petitioner who has been appointed after Page 9 of 19 HC-NIC Page 9 of 19 Created On Sat Feb 27 23:47:10 IST 2016 C/SCA/8551/2015 JUDGMENT the G.R. dated 15.10.1984 can be denied the pension / pensionary benefits under the G.R. dated 15.10.1984 on the ground that he had not exercised the option for GPF?
2. Whether past services of such an employee is required to be counted for qualifying services for pension?
3. Whether the past services is required to be counted / considered for fixation of the pension or for qualifying services for pension only?"
10.1.The Hon'ble Division Bench, after considering various clauses of G.R. dated 15.10.1984, observed and held as under:
"......................From the aforesaid it appears that prior to 01.04.1982 the GPF Scheme / Pension Scheme and other retirement benefits admissible under the Gujarat State Government Servants was not applicable / admissible to the full time teaching staff of the University under the Education Department and in affiliated and aided nongovernment Arts, Science and Commerce Colleges in the State. By G.R. dated 15.10.1984, the State Government came out with a pension scheme for the teaching staff in the nongovernment affiliated colleges in the universities and by the G.R. dated 15.10.1984, which was made effective from 01.04.1982, the pension, gratuity and other retiral benefits admissible to the Gujarat State Government servants under the Revised Pension Rules, 1950 contained in Appendix XIVC to BCSR Rules, Volumes II, as amended Page 10 of 19 HC-NIC Page 10 of 19 Created On Sat Feb 27 23:47:10 IST 2016 C/SCA/8551/2015 JUDGMENT from time to time, the family pensions scheme sanctioned in Government Resolution, Finance Department No.FPS1071J dated 01.01.1972 as amended from time to time is made applicable to the full time teaching staff of the universities under the Education Department and in affiliated and aided nonGovernment Arts, Science, Commerce and Education Colleges in this State with effect from 01.04.1982. As noted hereinabove, the said scheme is made applicable with effect from 01.04.1982. If Clause 3 is perused, two types of employees were to exercise option viz. (1) members of the existing staff recruited before 01.04.1982 and (2) those staff who have retired on or after 01.04.1982 and prior to the date of issue of the G.R. dated 15.10.1984, even the period of one year from the above date, whether to continue in CPF or to go under the pension scheme and such option was to be final. The reason for giving such option by the aforesaid two types of employees was because at the time and prior to the issuance of the G.R. dated 15.10.1984 which was made effective from 01.04.1982, the employee had no opportunity whatsoever, whether to opt for pension or for any other scheme and/or such employee should be governed by the prevailing system of CPF. Clause No.4 of the G.R. dated 15.10.1984 makes it very much clear that member of staff recruited on or after 01.04.1982 shall automatically be governed by the said scheme and such staff will not be allowed to opt for CPF. Therefore, all the employees recruited on or after 01.04.1982 shall automatically be governed by the Pension Scheme under the G.R. dated 15.10.1984 and only those employees who were recruited prior to 01.04.1982, meaning thereby the existing staff Page 11 of 19 HC-NIC Page 11 of 19 Created On Sat Feb 27 23:47:10 IST 2016 C/SCA/8551/2015 JUDGMENT recruited before 01.04.1982 and those who have retired on or after 01.04.1982, but prior to the date of the issuance of the G.R. dated 15.10.1984 were required to exercise the option as to whether they would like to continue in CPF or to go under the pension scheme as per the G.R. dated 15.10.1984. Under the circumstances, as such the employee who was recruited after 01.04.1982 was not required to exercise any option as there was no such need under the G.R. dated 15.10.1984 to exercise such option by such employees who are recruited after 01.04.1982. Therefore, the contention of learned Government Pleader that the original petitioner was required to exercise option for pension and as at the time of joining original respondent No.4 College I.e. in the year 1987, he did not give any option and therefore, the petitioner is not entitled to the pension under the G.R. dated 15.10.1984 cannot be accepted and is hereby rejected. On fair reading of the entire G.R. dated 15.10.1984, it is observed and held that any staff and/or employee of the University under the Education Department and in affiliated and aided nongovernment Arts, Science and Commerce Colleges in the State, appointed / recruited after 01.04.1982 shall automatically be governed by the G.R. dated 15.10.1984 and shall be entitled to the pension scheme automatically and they are not required to give any option."
10.2.Thereafter, the Hon'ble Division Bench answered question Nos. 2 and 3 formulated in para 6, in para 6.2. as under:
"[6.2] Now, so far as question Nos.2 and 3 Page 12 of 19HC-NIC Page 12 of 19 Created On Sat Feb 27 23:47:10 IST 2016 C/SCA/8551/2015 JUDGMENT posed for consideration of this Court referred to hereinabove I.e. with respect to past services of such an employee is concerned, as such Clause 6 of the G.R. dated 15.10.1984 is very clear. Clause 6 of the G.R. dated 15.10.1984 confers benefits upon an employee of all previous services whether temporary, officiating or permanent, either in one or more than one nongovernment aided colleges, University Department, Higher Secondary School, who were being paid Grantinaid from Government, shall be taken into account for computing the length of qualifying service for pension under the said scheme. Therefore, all previous services whether temporary, officiating or permanent either in one or more than one nongovernment aided colleges, University Department, Higher Secondary School, who were being paid Grantinaid from the Government was required to be taken into account for computing the length of qualifying service for pension. For example if the qualifying service for pension is 10 years and after getting appointment after 01.04.1982 an employee does not have the qualifying service of 10 years, however his previous service prior to 01.04.1982 whether temporary, officiating or permanent either in one or more than one nongovernment aided colleges, University Department, Higher Secondary School who were being paid Grantinaid is counted and thereafter it is found that he is fulfilling the qualifying service for pension, in that case, his past services is required to be counted and/or taken into account for computing the qualifying length of service for pension. However, his previous service is not required to be considered for any other purpose other than for computing the length of qualifying service for pension I.e. for fixation of pension etc. Page 13 of 19 HC-NIC Page 13 of 19 Created On Sat Feb 27 23:47:10 IST 2016 C/SCA/8551/2015 JUDGMENT Therefore, on fair reading of Clause 6 of the G.R. dated 15.10.1984, it is observed and held that all the previous services of the employee who has been appointed after 01.04.1982, is required to be counted and/or taken into account for computing the qualifying length of service for pension only."
10.3.The Hon'ble Division Bench in the said order ultimately directed the respondent authorities as under:
"[7.0] In view of the above, it cannot be said that the learned Single Judge has committed any error in directing the appellants to consider the previous service of the original petitioner i.e. for the period between 27.06.1968 to 17.11.1969 and 15.06.1970 to 30.06.1975 for computing the length of qualifying service for pension. However, as clarified hereinabove, the aforesaid previous service is required to be counted/considered and/or to be taken into consideration for computing the length of qualifying service only and not for computation of the pension and/or fixation of the amount of pension, as prior to 01.04.1982, the GPF Scheme / pension scheme was not applicable at all and it is made applicable with effect from 01.04.1982 and therefore, the past service / previous service is required to be taken into account only for computing the length of qualifying service for pension as per Clause 6 of the G.R. dated 15.10.1984. It is required to be noted that in the present case as such even if his previous service is not taken into account for fixation of the pension and/or for Page 14 of 19 HC-NIC Page 14 of 19 Created On Sat Feb 27 23:47:10 IST 2016 C/SCA/8551/2015 JUDGMENT quantification of the amount of pension, the amount of pension is not likely to be changed. As observed hereinabove, the original petitioner was mainly denied the pensionary benefits / GPF Scheme as per the G.R. dated 15.10.1984 mainly on the ground that at the time when the original petitioner joined original respondent No.4 College/institution, he did not exercise the option for the pension scheme, which as observed and held hereinabove the original petitioner was not required to exercise such an option."
11. The case of the petitioner is squarely covered by the aforesaid decision rendered by the Hon'ble Division Bench.
12. Even the learned Single Judge in similar type of other case passed an order on 07.08.2013 in Special Civil Application No.12214 of 2005. The said decision was challenged by the State Government by filing Letters Patent Appeal No.447 of 2014 before the Hon'ble Division Bench. However, the Hon'ble Division Bench dismissed the Letters Patent Appeal preferred by the State Government against which the State preferred Special Leave Petition before the Hon'ble Supreme Court. However, by an order dated 23.03.2015 the said SLP was also dismissed.
13. In another petition filed by the Principal of the College before this Court being Special Civil Application No.740 of 2013, learned Single Judge Page 15 of 19 HC-NIC Page 15 of 19 Created On Sat Feb 27 23:47:10 IST 2016 C/SCA/8551/2015 JUDGMENT allowed the said petition and observed in para 14 as under:
"14.Impugned order dated 15.9.2012 at Annexure-A is quashed and set aside. The petitioner is held entitled to the benefit of pension (GPF scheme) under the resolution dated 15.10.1984 with effect from the date the petitioner joined as Principal from 1.4.1996. The respondents are directed to give benefit of GPF scheme to the petitioner by transferring the account of the petitioner from CPF to GPF if the petitioner is not paid any amount from CPF account, however if the petitioner has received any amount from her CPF account, the petitioner shall be entitled to the benefit of pension scheme under the resolution dated 15.10.1984 only on petitioner depositing such amount with the respondent No.2. For such purpose, the respondent No.2 shall intimate the petitioner within a period of one month from the date of receipt of this order to deposit the amount of CPF received by her for the period of service after 1.4.1996. After the petitioner receives such intimation, she shall deposit the CPF amount within a period of one month thereafter with the respondent No.2. The respondent Nos.1 and 2 shall then complete the exercise of transferring the CPF amount to GPF account and finalize the pension case of the petitioner within a period of three months. However, if the petitioner has not received any CPF amount, the respondent Nos.1 and 2 shall complete the exercise of transferring the CPF amount to GPF account and finalize the pension case of the petitioner within a period of three months from the date of receipt of this order."
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14. Against the said order also the State
preferred Letters Patent Appeal being
L.P.A.No.982 of 2015. The Hon'ble Division Bench dismissed the said appeal and the State has accepted the said order.
15. In view of the aforesaid orders passed by this Court in various similar type of petitions and confirmed by the Hon'ble Division Bench of this Court, I am of the opinion that the case of the present petitioner is also covered by the said decisions. As observed hereinabove, learned Government Pleader is not in a position to distinguish the case of the petitioner.
16. In view of the aforesaid discussion, the respondents are hereby directed to consider the previous service of the husband of the petitioner i.e. for the period between 1968 to 1991 for computing the length of qualifying service for pension. However, it is clarified that the aforesaid previous service is required to be counted/considered and/or to be taken into consideration for computing the length of qualifying service only and not for computation of the pension and/or fixation of the amount of pension, as prior to 01.04.1982, the GPF Scheme/Pension Scheme was not applicable at all and it is made applicable w.e.f. 01.04.1982.
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Thus, the past service/previous service of the husband of the petitioner is required to be taken into account only for computing the length of qualifying service for pension as per Clause 6 of G.R. dated 15.10.1984. In the present case, the request of the husband of the petitioner was mainly not considered on the ground that at the time when he joined the service as Principal with Sahjanand Commerce College noon, he did not exercise the option for pension scheme. However, as observed hereinabove and as held by this Court in aforesaid decisions, the husband of the petitioner was not required to exercise such an option as he had joined the service as Principal after 01.04.1982 and therefore he was not required to exercise such an option.
17. Thus, it is held that the husband of the petitioner was entitled to get the pension/GPF scheme as per G.R. dated 15.10.1984. However, petitioner shall deposit the amount of CPF received by her/her husband. It is once again clarified that the period of service prior to 01.04.1982 shall be counted only for the purpose of pensionable service and not for any other purpose.
18. In view of the aforesaid discussion, the petitioner shall re-deposit/deposit the amount of Page 18 of 19 HC-NIC Page 18 of 19 Created On Sat Feb 27 23:47:10 IST 2016 C/SCA/8551/2015 JUDGMENT CPF within a period of one month from the date of receipt of this order and the respondent authorities shall pay the pensionary benefit as observed hereinabove within a period of 3 months thereafter. Petition is allowed. No order as to cost. Rule is made absolute to the aforesaid extent.
(VIPUL M. PANCHOLI, J.) Jani Page 19 of 19 HC-NIC Page 19 of 19 Created On Sat Feb 27 23:47:10 IST 2016